ON “WATERBOARDING”: LEGAL
INTERPRETATION AND THE CONTINUING
STRUGGLE FOR HUMAN RIGHTS
Daniel Kanstroom*
Abstract: While some aspects of the “waterboarding” debate are largely
political, the practice also implicates deeply normative underpinnings of
human rights and law. Attorney General Michael Mukasey has steadfastly
declined to declare waterboarding illegal or to launch an investigation
into past waterboarding. His equivocations have generated anguished
controversy because they raise a fundamental question: should we balance “heinousness and cruelty” against information that we “might get”?
Mr. Mukasey’s approach appears to be careful lawyering. However, it portends a radical and dangerous departure from a fundamental premise of
human rights law: the inherent dignity of each person. Although there is
some lack of clarity about the precise definition of torture, all is not
vagueness, or reliance on “circumstances,” and post hoc judgments. We
have clear enough standards to conclude that waterboarding is and was
illegal. Official legal equivocation about waterboarding preserves the potential imprimatur of legality for torture. It substitutes a dangerously fluid
utilitarian balancing test for the hard-won respect for human dignity at
the base of our centuries-old revulsion about torture. That is precisely
what the rule of law (and the best lawyers) ought not to do.
This is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A
democracy must sometimes fight with one hand tied behind its back.
Even so, a democracy has the upper hand. The rule of law and the
liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its
spirit . . . .1
* Director, Boston College Law School Human Rights Program; Associate Director,
Boston College Center for Human Rights and International Justice, and Clinical Professor
of Law. This essay is the first part of a larger attempt to analyze the deep legal and ethical
issues raised by the waterboarding debate. I am deeply grateful to Ellen Downes for encouraging me to undertake this project, and to Kent Greenfield, David Hollenbach SJ, and
Zyg Plater for helpful critique.
1 HCJ 5100/94, Pub. Comm. Against Torture v. State of Israel [1999], 7 B.H.R.C. 31,
available at elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf.
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Introduction: What is “Waterboarding”?
The selection of Attorney General Michael Mukasey as this year’s
commencement speaker has prompted serious, thoughtful, respectful,
and wide-spread discussions at Boston College Law School and beyond.
As the Director of Boston College Law School’s Human Rights Program, I was pleased to be asked to write a short analysis of what I believe
to be at stake in this debate. Although it is clearly not intended to be a
complete treatment of all the complex legal issues, I hope this brief review will be of some use and may help focus future conversations.
The questions are basic: Is “waterboarding” torture? Is it “cruel”
and “inhuman treatment”?2 Does it “shock the conscience”?3 If the
answer to any of these is yes then what ought we to do about it? While
some of the debate surely derives from political disagreements, the
waterboarding questions also involve core ideas and methodologies of
human rights and law.
Let us be clear about what we are discussing. Although the word,
“waterboarding,” is of recent vintage, the practice is one of the oldest
and most widely recognized forms of torture.4 This is its essence: a
person is forcibly seized and restrained. He or she is then immobilized, face up, with the head tilted downward. Water is then poured
into the breathing passages.5 The exact methods recently used by the
Central Intelligence Agency (CIA) are still unknown, but likely have
involved placing a cloth or plastic wrap over or in a person’s mouth,
then pouring the water.6 As you first think of it, the practice might
seem rather mild compared to other forms of torture. But the effects
are dramatic and severe. The inhalation of water causes a gag reflex,
from which the victim experiences what amounts to drowning and
feels that death is imminent.7
2 See Universal Declaration of Human Rights. G.A. Res. 217A, art. 5, U.N. GAOR, 3d
Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 10, 2948), available at http://www.un.org/Overview/rights.html; International Covenant on Civil and Political Rights, art. 7, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171.
3 See Hearing on Oversight of the U.S. Dep’t of Justice Before the S. Comm. on the Judiciary, Fed.
News Serv. (Lexis), Jan. 30, 2008 (statement of Michael B. Mukasey, Att’y Gen. of the
United States) [hereinafter Jan. 30, 2008 Hearing].
4 See William Safire, On Language; Waterboarding, N.Y. Times, Mar. 9, 2008, (Magazine),
at 16 (“If the word torture, rooted in the Latin for ‘twist,’ means anything (and it means
‘the deliberate infliction of excruciating physical or mental pain to punish or coerce’),
then waterboarding is a means of torture. The predecessor terms for its various forms are
water torture, water cure and water treatment.”).
5 See Evan Wallach, Waterboarding Used to Be a Crime, Wash. Post, Nov. 4, 2007, at B1.
6 See id.
7 See id.
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Waterboarding is a viscerally effective, coercive interrogation
technique designed to overcome the will of the individual. It causes
severe physical suffering in the form of reflexive choking, gagging,
and the feeling of suffocation. Indeed, if uninterrupted, waterboarding can cause death by suffocation. The victim immediately realizes
this on the most basic level. By producing an experience of drowning,
and eliciting a visceral panic response, it causes severe mental pain
and suffering, distress, and the terror of imminent death. A medical
expert on torture has testified that waterboarding “clearly can result
in immediate and long-term health consequences. As the prisoner
gags and chokes, the terror of imminent death is pervasive, with all of
the physiologic and psychological responses expected . . . . Long term
effects include panic attacks, depression and PTSD.”8
Waterboarding has long been understood as torture, from its
earliest incarnations during the Spanish Inquisition through its systematic use by the Khmer Rouge.9 It has been called torture by modern
authorities ranging from the tribunals that tried Japanese war criminals
in the aftermath of the Second World War to Senator John McCain, who
has stated that waterboarding a detainee is torture— “no different than
holding a pistol to his head and firing a blank.”10 Similarly, former
Secretary of Homeland Security Tom Ridge has said, “There’s just no
doubt in my mind—under any set of rules—waterboarding is torture.”11
The vast majority of experts in the field concur in this view—and
by this I do not only mean human rights scholars and activists, among
8 U.S. Interrogation Policy and Executive Order 13440: Hearing Before the S. Select Comm. on
Intelligence, Sept. 25, 2007 (statement of Allen S. Keller, Director, Bellevue/NYU Program
for Survivors of Torture), available at http://intelligence.senate.gov/070925/akeller.pdf.
9 See George Ryley Scott, The History of Torture Throughout the Ages 171–
72 (2003) (describing the “torture of water” (“[s]ometimes referred to as tormento de toca”)
which was used “when the racking, in itself, proved ineffectual. The victim . . . was compelled to swallow water, which was dropped slowly on a piece of silk of fine linen placed in
his mouth. . . . A variation of the water torture was to cover the face with a piece of thin
linen, upon which the water was poured slowly, running into the mouth and nostrils and
hindering or preventing breathing almost to the point of suffocation.”); Dana Milbank,
Logic Tortured, Wash. Post, Nov. 2, 2007, at A2.
10 See Waterboarding: Interrogation or Torture?, CBS News, Nov. 1, 2007, available at http://
www.cbsnews.com/stories/2007/11/01/national/main3441363.shtml; Wallach, supra note 5.
11 Former Bush Official: Waterboarding is Torture, MSNBC, Jan. 18, 2008, available at
http://www.msnbc.msn.com/id/22735168/. “One of America’s greatest strengths is the
soft power of our value system and how we treat prisoners of war, and we don’t torture. . . .
And I believe, unlike others in the administration, that waterboarding was, is—and will
always be—torture. That’s a simple statement.” Id.
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whom I am sure there is unanimity.12 Waterboarding is explicitly barred
by the new Army Field Manual.13 Indeed, in a November 2007 letter to
the Senate, four retired U.S. Judge Advocates General stated:
“Waterboarding is inhumane, it is torture, and it is illegal. . . . [I]t is
not, and never has been, a complex issue, and even to suggest
otherwise does a terrible disservice to this nation. . . . This must end.”14
However, CIA director, General Michael Hayden, has admitted
that the CIA used waterboarding on three prisoners during 2002 and
2003.15 As is now well-known, the CIA had been advised by the Justice
Department Office of Legal Counsel (OLC) that the practice was not
illegal.16 We now know that certain OLC lawyers, responding to immense political pressure and engaging in shockingly poor legal technique, gave incorrect legal advice to interrogators.17 Depending on
how one interprets the Nuremberg precedents, this could amount to
what Jack Goldsmith has called “get-out-of-jail-free cards” for the inter-
12 See, e.g., Human Rights First & Physicians for Human Rights, Leave No Marks:
Enhanced Interrogation Techniques and the Risk of Criminality 17–18 (2007)
(examining ten interrogation techniques, including waterboarding, and noting that doctors have documented that survivors of water torture suffer from long lasting-trauma and,
even more than a decade after the event, physical pain), available at http://physiciansfor
humanrights.org/library/documents/reports/2007-phr-hrf-summary.pdf.
13 U.S. Dep’t of the Army, Field Manual 2-22.3: Human Intelligence Collector Operations 5-21 (2006), available at http://www.army.mil/institution/armypublicaffairs/pdf/
fm2-22-3.pdf; U.S. Dep’t of Army, Field Manual 3-24: Counterinsurgency D-5 (2006), available at http://www.fas.org/irp/doddir/army/fm3-24.pdf [hereinafter FM 3-24]. The new
counterinsurgency manual, much of which was written by Lt. Gen. David Petraeus and
retired Col. Conrad Crane, was released in December 2006. See FM 3-24.
14 Letter from Donald J. Guter et al., Retired Judge Advocate General, to Sen. Patrick
Leahy, Chairman, S. Comm. on the Judiciary (Nov. 2, 2007), available at http://leahy.senate.
gov/press/200711/110207RetGeneralsOnMukasey.pdf. In 2006, the Senate Judiciary Committee held hearings on the authority to prosecute terrorists. Id. The sitting Judge Advocates General of the military services were asked to respond to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning
(i.e., waterboarding).” Id. They unanimously and unambiguously agreed that such conduct is
inhumane and illegal and would constitute a violation of international law, particularly
Common Article 3 of the 1949 Geneva Conventions. Id.
15 See Hearing on Worldwide Threats Before the S. Select Comm. on Intelligence, Fed. News
Serv. (Lexis), Feb. 7, 2008 (statement of Michael Hayden, Director, Central Intelligence
Agency).
16 See infra text accompanying notes 80–83. The job of the OLC is to interpret federal
law within the executive branch. See U.S. Dep’t of Justice, Office of Legal Counsel, http://
www.usdoj.gov/olc/index.html (last visited Apr. 24, 2008).
17 See generally Jack Goldsmith, The Terror Presidency: Law and Judgment Inside
the Bush Administration (2007). As Jack Goldsmith reports being told by David
Addington, “The President has already decided that terrorists do not receive Geneva Convention protections. . . . You cannot question his decision.” Id. at 41.
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On "Waterboarding"
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rogators.18 Perhaps that is fair. But the lawyers themselves may not escape unscathed.19
I. Is Waterboarding Legal?
Mr. Mukasey has maintained a strikingly equivocal approach to waterboarding. He has admitted that he would view waterboarding as torture,
were it done to him.20 He properly has criticized the disgraceful “Bybee
Memo” of August 2002—which, among other flagrant errors, re-defined
the legal standard for torture as: “equivalent to the pain that would be
associated with serious physical . . . injury so severe [as to cause] death,
[or] organ failure. . . .”21 He called it “worse than a sin.”22 Perhaps more
to the point, he said it was “a mistake” and “unnecessary.”23
But he still has declined steadfastly to declare waterboarding illegal. He sometimes has adopted a sophisticated judicial posture, befitting his past role as a well-respected judge: “one should refrain from
addressing difficult legal questions in the absence of concrete facts and
18 Id. at 97; see Report of the International Law Commission to the General Assembly, 5
U.N. GAOR Supp. (No. 12), at 11–14, U.N. Doc. A/1316 (1950), reprinted in [1950] 2 Y.B.
Int’l L. Comm’n 375, U.N. Doc. A/CN.4/34 (Principle IV provides that “the fact that a
person acted pursuant to order of his Government or of a superior does not relieve him
from responsibility under international law, provided a moral choice was in fact possible to
him.”); United States of America v. Alstötter et al. (The Justice Case) 6 L.R.T.W.C. 1 (1948)
(trial of sixteen defendants, from the Reich Ministry of Justice or People’s and Special
Courts, raising the issue of what responsibility judges have for the enforcement of alleged
war crimes and crimes against humanity that were authorized by arguably binding laws); In
re Yamashita, 327 U.S. 1 16–17 (1946) (recognizing the doctrine of command responsibility, under which commanding officers are liable if they exercised effective control over
subordinates who engaged in torture in violation of the law of nations or knew or had
reason to know of their subordinates’ unlawful conduct but failed to take reasonable
measures).
19 See Press Release, Sen. Sheldon Whitehouse, Durbin and Whitehouse: Justice Department is Investigating Torture Authorization: Senate Judiciary Democrats Called for
Inquiry into DOJ’s Role in Overseeing CIA’s Use of Waterboarding (Feb. 22, 2008). In
February 2008, the Justice Department revealed that its internal ethics office was investigating the department’s legal approval for waterboarding by the CIA. See id.
20 Jan. 30, 2008 Hearing, supra note 3. “Would waterboarding be torture if it was done
to you?” Senator Kennedy asked. “I would feel that it was.” Mr. Mukasey answered. Id.
21 Memorandum from the Office of Legal Counsel on Standards of Conduct for Interrogation under §§ 2340–2340A to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002),
available at http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_2002
0801_JD_%20Gonz_.pdf [hereinafter Bybee Memo].
22 Nomination of Michael Mukasey to be the Attorney General of the United States: Hearing of
the S. Comm. on the Judiciary, Fed. News Serv. (Lexis), Oct. 17, 2007 [hereinafter Oct. 17
Nomination Hearing].
23 Oct. 17 Nomination Hearing, supra note 22.
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circumstances.”24 He finds the legality of waterboarding to be a “difficult” legal question “about which reasonable minds can and do differ.”25 He says that “it is not an easy question” and that assessing the legality of the practice depends upon an evaluation of “circumstances.”26
As to the consequences of past waterboarding, Mr. Mukasey has
said that because Justice Department lawyers concluded that the CIA’s
use of waterboarding was legal, the department cannot investigate
whether a crime had occurred.27 “That,” he stated, “would mean that
the same department that authorized the program would now consider
prosecuting somebody who followed that advice.”28 Before the Senate,
Mr. Mukasey put it this way: “I start investigations out of some indication that somebody might have had an improper authorization. I have
no such indication now.”29 But one might well ask, if the 2002 memo
was “worse than a sin” and “a mistake” how can it not have been an “improper authorization?”30
The answer, as we shall see, is that Mr. Mukasey apparently does
not believe that waterboarding necessarily was or would be illegal. He
likely believes that clarity is a simplistic virtue—indeed only one among
many professional virtues required of an Attorney General—and that
he has powerful ethical and institutional constraints in this matter, including OLC morale, and protection against civil lawsuits and criminal
24 Letter from Michael B. Mukasey, Att’y Gen. of the United States, to Patrick Leahy,
Chairman, S. Comm. on the Judiciary ( Jan. 29, 2008) at 2, available at http://www.usdoj.gov/
ag/speeches/2008/letter-leahy-013008.pdf; see also Nomination of Michael Mukasey to be the
Attorney General of the United States: Hearing of the S. Comm. on the Judiciary, Fed. News Serv.
(Lexis), Oct. 18, 2007 (“I don’t know what’s involved in the technique. If waterboarding is
torture, torture is not constitutional.”)
25 Letter from Michael B. Mukasey to Patrick Leahy, supra note 24, at 2.
26 Id. At times, though, his tone has been more that of the executive branch and notably consequentialist: “any answer that I could give could have the effect of articulating
publicly and to our adversaries the limits and the contours of generally worded laws that
define the limits of a highly classified interrogation program.” Id.
27 See Justice Department Oversight: Hearing of the H. Comm. on the Judiciary, Fed. News
Serv. (Lexis), Feb. 7, 2008 [hereinafter Feb. 7 Oversight Hearing]
28 Id. He also opined, “For me to use the occasion of the disclosure that that technique
was once part of the CIA program, an authorized part of the CIA program, would be for
me to tell anybody who relied, justifiably, on a Justice Department opinion that not only
may they no longer rely on that Justice Department opinion, but that they will now be
subject to criminal investigation for having done so. That would put in question not only
that opinion, but also any other opinion from the Justice Department. . . . And that’s not
something that I think would be appropriate, and it’s not something I will do.” Id.
29 Jan. 30, 2008 Hearing, supra note 3.
30 Id.; Oct. 17 Nomination Hearing, supra note 22.
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On "Waterboarding"
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prosecutions.31 There is surely truth to this, but I do not think it is the
deepest truth.
To my mind, perhaps the most interesting testimony given by Mr.
Mukasey was the following rather simple exchange:
SEN. BIDEN: When you boil it all down . . . it appears as
though whether or not waterboarding is torture is a relative
question, where it’s not a relative question whether or not you
hung someone by their thumbs from, you know, or you stuck
someone, you know, hung them upside down by their feet. . . .
ATTY GEN. MUKASEY: With respect, I don’t think that that’s
what I’m saying. I don’t think I’m saying it is simply a relative
issue. There is a statute under which it is a relative issue. . . .
[E]ssentially a balancing test of the value of doing something
as, against the cost of doing it.
SEN. BIDEN: When you say against the cost of doing it, do
you mean the cost in—that might occur in human life if you
fail to do it? Do you mean the cost—
ATTY GEN. MUKASEY: No.
SEN. BIDEN: —in terms of our sensibilities, in what we think
is appropriate and inappropriate behavior as a civilized society? What do you mean?
ATTY GEN. MUKASEY: I chose—I chose the wrong word. I
meant the heinousness of doing it, the cruelty of doing it balanced against the value.
SEN. BIDEN: Balanced against what value?
ATTY GEN. MUKASEY: The value of what information you
might get.32
Why have Mr. Mukasey’s equivocations generated such anguished
controversy, even though the practice is, according to him, not “authorized for use” in the current CIA interrogation program?33 The answer, I
believe, is revealed by the above dialogue. Waterboarding implicates
the very deepest values of our legal system. This includes a basic methodological question: do we balance “heinousness and cruelty” against
31 See Pedro Ruz Gutierrez, Mukasey Shoring Up Morale at Main Justice, Legal Times,
Apr. 21, 2008, available at http://www.law.com/jsp/article.jsp?id=1208774503039.
32 Jan. 30, 2008 Hearing, supra note 3.
33 Letter from Michael B. Mukasey to Patrick Leahy, supra note 24, at 2 (explaining
that the CIA Director, Attorney General, and President would all have to approve use of a
currently unauthorized technique).
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information that we “might get”?34 Or should we demand forceful and
clear statements of principle about certain practices? Do we rely on the
hidden judgments of OLC lawyers, on post hoc assessments by reviewing
courts after a future detainee is waterboarded, or can we put the issue
to rest once and for all?
Certain legal words, such as genocide, slavery, and torture, carry
unusually deep resonance and weight. They are the embodiments, the
crystallizations and, one would hope, the points of repose of once contentious but now settled political, legal, and moral disputes. Thus,
much is at stake when Mr. Mukasey states that he believes there are circumstances in which waterboarding would not be torture and could be
legal: “There are some circumstances where current law would appear
clearly to prohibit the use of waterboarding. Other circumstances
would present a far closer question.”35
I respectfully, but fundamentally, disagree. On first blush, Mr. Mukasey’s approach might appear to be the prudent reasoning of a careful
lawyer, steeped as we all are, in the broad realist tradition. However, to
many observers, and especially to a human rights lawyer such as myself
who has counseled and represented many torture victims, it appears to
be something quite different.36 It portends a radical and dangerous departure from the fundamental premises of human rights law: the inherent dignity of each person and the basic ideal of inalienable rights.37
34 Jan. 30, 2008 Hearing, supra note 3.
35 Letter from Michael B. Mukasey to Patrick Leahy, supra note 24, at 2.
36 Mr. Mukasey also said that he has concluded that other current methods used by the
CIA to interrogate terror suspects “comply with the law.” Id. at 2. Elisa Massimino, Washington Director of Human Rights First, responded, “If Attorney General Michael Mukasey thinks
there are circumstances under which waterboarding is legal, that’s all the more reason Congress should not defer to his judgment on the legality of any other interrogation technique
used in the CIA’s enhanced interrogation program.” Press Release, Leading Rights Group
Rejects AG’s Testimony On Waterboarding, Legality of CIA Program ( Jan. 30, 2008), available
at http://www.humanrightsfirst.org/media/usls/2008/alert/411/.
37 See generally Oscar Schachter, Editorial Comment, Human Dignity as a Normative Concept, 77 Am. J. Int’l L. 848, 848 (1983). For an interesting discussion of the grounding of
the human dignity principle, see generally Eric Blumenson, Who Counts Morally?, 14 J.L. &
Religion 1–40 (1999–2000). The Preamble of the Charter of the United Nations states
that “we the peoples of the United Nations” are “determined . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights
of men and women and of nations large and small.” U.N. Charter pmbl. Article 1 of the
Universal Declaration of Human Rights states: “All human beings are born free and equal
in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” G.A. Res. 217A, supra note 3, art. 1.
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It therefore implies a deep disagreement over what Felix Cohen once
called “the social ideals by which the law is to be judged.”38
II. The Iconic Abhorrence of Torture
To see why this is so, we must understand that torture is a special
case, iconically abhorred by our law.39 The nascent idea of the modern
legal system, the rule of reason in law—and indeed the very idea of
rights—were all linked to the abolition of torture.40 Rejection of torture
has been accurately described as “a distinguishing feature of the common law,” admired by authorities ranging from William Blackstone to
Voltaire.41 Lord Hoffmann has recently noted that “the rejection of torture by the common law has a special iconic significance as the touchstone of a humane and civilised legal system.”42
The objections to torture were always of two types. First, in the Anglo-American tradition, torture came to be seen as “‘totally repugnant
to the fundamental principles of English law’” and “‘repugnant to reason, justice, and humanity.’”43 Many also abhor it on moral grounds. As
Bishop Thomas G. Wenski has written, “the question of how we treat
detainees” is a “profound moral question” that “has a major impact on
38 Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev.
809, 812 (1935) (“When the vivid fictions and metaphors of traditional jurisprudence are
thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the
opinion or argument, is apt to forget the social forces which mold the law and the social
ideals by which the law is to be judged.”). Moreover, it raises ethical concerns as “lawyering.” See Richard B. Bilder & Detlev F. Vagts, Editorial Comment, Speaking Law to Power:
Lawyers and Torture, 98 Am. J. Int’l L. 689, 691–95 (2004) (considering the ethical requirements of the ABA Model Rules of Professional Conduct as “professional qualities that
protect against legal advice or advocacy that might undermine the national interest in
respect for law, or subvert or erode the international legal order”).
39 See generally Harold Hongju Koh, A World Without Torture 43 Colum. J. Transnat’l L.
641, 642 (2005) (“The right to be free from torture is an indelible part of the American
experience.”).
40 See generally Karen J. Greenberg, Introduction: The Rule of Law Finds Its Golem: Judicial Torture Then and Now to The Torture Debate in America 1 (2006) (Karen J. Greenberg, ed.).
41 A. v. Sec’y of State for the Home Dep’t, [2005] UKHL 71 [11]; William Blackstone, 4 Commentaries *318, *320–32; Voltaire (attributed), Commentary on Cesare Beccaria, An Essay on Crimes and Punishments xxxix–xliii (London, 1770).
42 [2005] UKHL 71, at [83].
43 See id. at [12] (quoting David Jardine, A Reading on the Use of Torture in the
Criminal Law of England Previously to the Commonwealth 6, 12 (London, Baldwin
& Cradock 1837); see also Jeremy Waldron, Torture and Positive Law: Jurisprudence for the
White House, 105 Colum. L. Rev. 1681, 1719 (2005).
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human dignity.”44 [P]risoner mistreatment compromises human dignity. A respect for the dignity of every person, ally or enemy, must serve
as the foundation of security, justice and peace.”45
Torture was also frequently viewed as forensically unreliable,
though this argument was generally linked to the fundamental condemnation.46 We should also, perhaps recall, in light of recent debates
about the power of the U.S. president, that the abolition of torture in
English history was part of the struggle to determine the limits of Royal
prerogative as against the common law.47 This connects to yet another
concern about torture: its tendency to spread; what Henry Shue has
called its “metatastic tendency.”48 As William Holdsworth wrote, “Once
torture has been acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation. It hardens and brutalizes those who have become accustomed to use it.”49
In this broad tradition, I hold to a view about torture that is rather
simple, straightforward and, I believe, apolitical and non-ideological.
To paraphrase Justice Robert Jackson, if there is any fixed star in our
constitutional and human rights constellation, it is that torture is illegal.50
There are simply no exceptions to this rule under the corpus of human
rights law. There can be no balancing, no utilitarian calculus, no
“torture warrants,” and no “ticking bomb” hypotheticals.51 We simply
44 Letter from Thomas Wienski, Chairman, Comm. on Int’l Pol’y, U.S. Conference of
Catholic Bishops (Sept. 15, 2006), available at http://www.usccb.org/sdwp/international/
2006septemberlettertosenate.pdf.
45 Id.
46 See, e.g., Beccaria, supra note 41, at 57–69. There is a potential distinction between
the use of torture evidence in judicial-type proceedings versus its use for security-based or
investigative purposes. David Hume once described the latter practice as “a barbarous
engine.” 2 David Hume, Commentaries on the Law of Scotland Respecting Crimes
324 (Edinburgh, Bell & Bradfurte 1844).
47 5 William Holdsworth, A History of English Law 194–95 (2d ed. 1937). For a
time, torture—though illegal under the common law—was “justified by virtue of the extraordinary power of the crown which could, in times of emergency, override the common
law.” Id. at 194. Coke, who initially accepted the existence of this power, later saw it as “incompatible with the liberty of the subject” and concluded “that all torture is illegal.” Id.
48 Henry Shue, Torture, 7 Phil. & Pub. Aff. 124, 143 (1978).
49 Holdsworth, supra note 47, at 194 (citation omitted).
50 See West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
51 Space limitations preclude complete repetition of the persuasive de-bunking of this
facile trope here. As Jeremy Waldron has pointed out, among other defects,
[t]he hypothetical asks us to assume that the power to authorize torture will
not be abused, that intelligence officials will not lie about what is at stake or
about the availability of the information, that the readiness to issue torture
warrants in one case (where they may be justified by the sort of circumstances
Dershowitz stipulates) will not lead to their extension to other cases (where
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do not legally torture people under any circumstances.52 As Jeremy
Waldron writes, “We can all be persuaded to draw the line somewhere,
and I say we should draw it where the law requires it, and where the
human rights tradition has insisted it should be drawn.”53
Fortunately, the rejection of torture, grounded in a respect for
human dignity, has long been a foundational legal principle for the
United States. Although U.S. statutory and constitutional law may use
different phrasing than certain international legal instruments, I believe
that the ultimate rule is and must be the same.54
To cite just a few brief examples, Common Article 3 of the Geneva
Conventions, long accepted by the United States, clearly prohibits “cruel
treatment and torture” as well as “outrages upon personal dignity.”55
Article 5 of the Universal Declaration of Human Rights and Article 7 of
the International Covenant on Civil and Political Rights, which the
United States has ratified, each state simply and absolutely that: “No one
shall be subjected to torture or to cruel, inhuman, or degrading
treatment or punishment.”56 And of course there is the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
the circumstances are somewhat less compelling), that a professional corps of
torturers will not emerge who stand around looking for work, that the existence of a law allowing torture in some cases will not change the office politics of police and security agencies to undermine and disempower those who
argue against torture in other cases, and so on.
Waldron, supra note 43, at 1716; see also David Luban, Essay, Liberalism, Torture, and the Ticking
Bomb, 91 Va. L. Rev. 1425, 1440 (2005) (“The idea is to force the liberal prohibitionist to
admit that yes, even he or even she would agree to torture in at least this one situation. Once
the prohibitionist admits that . . . all that is left is haggling about the price.”); Ass’n for the
Prevention of Torture, Defusing the Ticking Bomb Scenario: Why We Must Say No
to Torture, Always (2007).
52 Waldron, supra note 43, at 1714–15.
53 Id. at 1715.
54 See Wallach, supra note 5.
55 Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
56 G.A. Res. 217A, supra note 3, art. 5; International Covenant on Civil and Political
Rights, adopted Dec. 16, 1966, S. Exec. Doc. No. E, 95–2 (1978), 999 U.N.T.S. 171. The
ratification was accompanied by the following reservation: “The United States considers
itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or
punishment’ means the cruel and unusual treatment or punishment prohibited by the
Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
S. Exec. Rep. No. 102–23, at 22 (1992). The Vienna Convention on the Law of Treaties,
generally accepted in the United States as authoritative, holds that a reservation is neither
valid nor effective if it purports to defeat the “object and purpose” of the treaty. See Vienna
Convention on the Law of Treaties, art. 19, done on May 23, 1969, 1155 U.N.T.S. 331.
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Treatment or Punishment (CAT), which the United States has ratified.57
The CAT not only prohibits torture but it also requires states to “take
effective legislative, administrative, judicial or other measures to prevent
acts of torture in any territory under its jurisdiction,” and to “ensure
that all acts of torture are offences under its criminal law.” 58
Let us pause on this point for a moment. Not only is torture
definitively rejected under any circumstances, but states are affirmatively
obliged to prohibit it, to punish it, and to prevent it.59 As the former
U.N. Special Rapporteur on Torture observed more than twenty years
ago, “If ever a phenomenon was outlawed unreservedly and unequivocally it is torture.”60 To carry out the United States’ obligations under
the CAT, Congress enacted the Torture Convention Implementation Act
(the Torture Act) which provides that:
[w]hoever outside the United States commits or attempts to
commit torture shall be fined under this title or imprisoned
not more than 20 years, or both, and if death results to any
person from conduct prohibited by this subsection, shall be
punished by death or imprisoned for any term of years or for
life.61
Thus, if the waterboarding, now admittedly conducted by CIA agents,
was “torture” and was committed outside the United States there are
very serious potential criminal consequences.62
The prohibition against torture is also widely recognized as jus cogens
(that is, a “peremptory norm”) and a “non-derogable” principle, as
fundamental a rule as law can sustain.63 It is clearly an obligation of the
57 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 85.
58 Id. arts. 2(1), 4(1).
59 See Prosecutor v. Furundzija, Case No. IT-95–17/1, Judgment, ¶ 155 (Dec. 10, 1998).
60 Special Rapporteur on Torture, Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, ¶ 3, U.N. Doc. E/CN.4/1986/15 (Feb. 19, 1986) (prepared by
Peter Kooijmans).
61 Torture Convention Implementation Act of 1994, Pub. L. No. 103-236, § 506(a), 108
Stat. 463 (1994) (codified at 18 U.S.C. §§ 2340–2340A); see H.R. Conf. Rep. No. 103-482, at
229 (1994). The statute took effect on Nov. 20, 1994, the date that the United States became a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
62 Conduct constituting “torture” occurring within the United States is also clearly
prohibited by various federal and state criminal statutes. See 18 U.S.C. §§ 113, 114, 2261A
(2000) (describing assault, maiming, and interstate stalking).
63 See Vienna Convention on the Law of Treaties, supra note 56, art. 53; see also Restatement (Third) of the Foreign Relations Law of the United States § 102 & n.6
(1987); Erika de Wet, The Prohibition of Torture as an International Norm of jus cogens and Its
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type recognized by the Nuremberg Tribunals as the “very essence,”
pursuant to which “individuals have international duties which transcend
the national obligations of obedience imposed by the individual State.”64
Human rights law recognizes that certain rights may be suspended
by governments during a “time of public emergency which threatens
the life of the nation and the existence of which is officially proclaimed.”65 But the prohibition against torture—like those against slavery and genocide—is exempted from this provision.66 Such actions may
never be done to anyone under any circumstances. Article 2 of the CAT provides: “No exceptional circumstances whatsoever, whether a state of war
or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”67
Article 15 of the CAT makes clear that statements made as a result
of torture are inadmissible in any proceedings.68 Put simply, these
principles are the clear embodiment of what many deem the most
important achievement of human rights law: the crystallization of legal
norms to protect the basic dignity of the individual. At base, we do not
torture because:
torture’s object is precisely not just to damage but to destroy a
human being’s power to decide for himself what his loyalty
and convictions permit him to do . . . to reduce its victim to a
screaming animal for whom decision is no longer possible—
the most profound insult to his humanity, the most profound
outrage of his human rights.69
As one court has noted, “the torturer has become like the pirate and
slave trader before him, hostis humani generis, an enemy of all mankind.”70
Implications for National and Customary Law, 15 Eur. J. Int’l L. 97, 98 (2004). This means it
is a principle of international law so fundamental that no nation may ignore it or attempt
to contract out of it in any way. A treaty that violates jus cogens is void. Id.
64 See Judgment, Monday, Sept. 30, 1946 in 1 Trial of the Major War Criminals Before the International War Tribunal 223 (1947).
65 International Covenant on Civil and Political Rights, supra note 2, art. 4.
66 See id. arts. 4, 6–8 (barring derogation from prohibitions on genocide, torture, and
slavery).
67 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, supra note 57, art. 2.
68 See id. art. 15 (except “against a person accused of torture as evidence that the
statement was made”).
69 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate 38–39 (2006).
70 Filartiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980).
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If an Attorney General endorses or fails to clearly condemn the
use of torture, we are on the dangerous road described so well by Justice Jackson in his Korematsu dissent.71 The rationalization of such conduct “to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that [it] sanctions such an order,
[validates the principle which then] lies about like a loaded weapon
ready for the hand of any authority that can bring forward a plausible
claim of an urgent need.”72
For all these reasons, Mr. Mukasey has vigorously and properly
condemned torture in the abstract. This is where the complexity arises.
The clarity with which torture is rejected is not matched by similar clarity in its definition. Indeed, there is a well-recognized definitional problem regarding torture, the full complexities of which are beyond the
scope of this short essay.73 Still, all is not vagueness and reliance on
“circumstances” and on post hoc judgments. If that were the case, then the
abhorrence of torture would be meaningless. We have clear enough
definitions for many purposes, including to conclude that waterboarding, even if perhaps not the worst of tortures, is and was clearly
illegal.
III. The Interpretation Dilemma: Underlying Values and the
“Shocking” of Conscience
I think it would be very difficult to be a Kantian and to have any responsibility in the government.74
Torture is formally defined by the CAT as “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person,
information or a confession . . . .”75
The Torture Act defines the term “severe mental pain or suffering”
in relevant part as “the prolonged mental harm caused by or resulting
71 See Korematsu v. United States, 323 U.S. 214, 246 (1944) ( Jackson, J., dissenting).
72 Id.
73 See generally Gail H. Miller, Defining Torture (2005).
74 Posting of Marty Lederman to Balkinization, http://balkin.blogspot.com/2005/04/
waldronyoo-debate-on-torture.html (Apr. 26, 2005) (quoting John Yoo during 2005 debate
with Jeremy Waldron at Columbia University).
75 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, supra note 57, art. 1. The Convention entered into force with respect to the
United States on Nov. 20, 1994. S. Treaty Doc. 100–20 (1994).
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from—(A) the intentional infliction or threatened infliction of severe
physical pain or suffering; . . . [or] (C) the threat of imminent death
. . . .”76
How should these standards be interpreted? The disgraceful and
now repudiated outer limit of the interpretive exercise regarding
torture was the so-called “Bybee Memo” of August 1, 2002.77 Written by
John Yoo, the memo argued that torture required that “[t]he victim
experience intense pain or suffering of the kind that is equivalent to
the pain that would be associated with serious physical injury so severe
that death, organ failure, or permanent damage resulting in loss of
significant body function will likely result.”78 This interpretation was
expressly reversed by a memo written by Daniel Levin on December 30,
2004, which concluded that “severe” pain under the statute is not limited to such “excruciating or agonizing” pain.79 But the OLC still declined to conclude that waterboarding was torture. 80
It is beyond the scope of this essay to consider why OLC lawyers
may have acted as they did. However, as one reviews the description of
waterboarding with which this essay begins, recall that the ultimate
question is not only whether waterboarding is torture. It is whether it
is clearly illegal. As to this, I do not think there can be any doubt.
Consider the War Crimes Act (WCA), which criminalizes “war
crimes” whether they occur inside or outside the United States.81 From
1997 until 2006, the WCA defined “war crimes” to include grave
breaches of any of the Geneva Conventions or conduct that constituted
a violation of Common Article 3 of the Geneva Conventions.82 The Supreme Court’s Hamdan decision made clear that Common Article 3 of
76 Torture Convention Implementation Act of 1994, Pub. L. No. 103-236, § 506(a), 108
Stat. 463 (1994) (codified at 18 U.S.C. §§ 2340–2340A).
77 See Bybee Memo, supra note 21; Memorandum from Daniel Levin, Acting Assistant
Att’y General, on Legal Standards Applicable Under 18 U.S.C. §§ 2340–2340A for James B.
Comey, Deputy Att’y General (Dec. 30, 2004), available at news.findlaw.com/hdocs/docs/
terrorism/dojtorture123004mem.pdf [hereinafter Levin Memo].
78 Bybee Memo, supra note 21, at 13; see Goldsmith, supra note 17, at 142.
79 Levin Memo, supra note 77, at 2.
80 See id. at 2 n.8. Levin further determined that the statute also prohibits certain conduct specifically intended to cause “severe physical suffering” as distinct from “severe
physical pain.” Id. at 10–12. In a footnote, however, Levin maintained, that “we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and
do not believe that any of their conclusions would be different under the standards set
forth in this memorandum.” Id. at 2 n.8.
81 See War Crimes Act of 1996, Pub. L. No. 104-192, 110 Stat. 2104 (codified as
amended at 18 U.S.C. § 2441 (2000)).
82 Id.; see Geneva Convention Relative to the Treatment of Prisoners of War, supra note
55, art. 3.
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the Geneva Conventions does apply to suspected al-Qaeda detainees,
requiring that they be “treated humanely,” and prohibiting “outrages
upon personal dignity, in particular humiliating and degrading treatment.”83 The 2006 Military Commissions Act (MCA) retroactively
narrowed the WCA to a “grave breach” of Common Article 3.84 The
category, however, still includes both torture and “cruel or inhuman
treatment.” 85 Indeed, under the MCA, mental harm need not be
“prolonged” as required by the Torture Act, but may be “serious and
non-transitory.”86
“Cruel, inhuman or degrading” conduct that does not quite rise to
the level of “torture” is also prohibited by the CAT.87 The Detainee
Treatment Act of 2005 (DTA) specifically prohibited “cruel, unusual
and inhuman treatment or punishment” against any individual in U.S.
custody regardless of location or nationality.88 The DTA, however, states
that “the term ‘cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to
the Constitution of the United States . . . .”89
It was in regard to this statute that Mr. Mukasey testified: “There
is a statute under which it is a relative issue . . . which is a shocks-the-
83 Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2973 (2006).
84 Military Commissions Act of 2006, Pub. L. No. 109-366, § 6(b)(1)(A), (2), 120 Stat.
2600, 2633–35 (2006) (to be codified in scattered sections of at 10, 18, 28, 42 U.S.C.)
(making changes retroactive to November 26, 1997).
85 §6 (b)(1)(B)(d)(1)(A)–(B), 120 Stat. at 2633. The definition is essentially the same
as that of the Torture Act, except that the WCA requires that the act be “for the purpose of
obtaining information or a confession, punishment, intimidation, coercion, or any reason
based on discrimination of any kind.” See §6 (b)(1)(B)(d)(1)(A), 120 Stat. at 2633.
86 § 6(b)(2)(E), 120 Stat. at 2634–35. The MCA also authorized the potential admission of coerced testimony (but not torture evidence) in military trials. § 3(a)(1), 120 Stat.
at 2607. Put simply, it is now possible that Guantánamo defendants could receive the death
penalty based on evidence obtained from witnesses who were subjected to waterboarding,
if it is not considered to be torture. Therefore, in that regard at least, the question of
whether waterboarding is torture could have profound significance. See §3 (a)(1), 120 Stat.
at 2607.
87 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, supra note 57, pmbl.
88 Detainee Treatment Act of 2005, Pub. L. 109-163, § 1403, 119 Stat. 3136, 3475
(2006) (to be codified at 42 U.S.C. §2000dd).
89 Id. The United States added the following to its instrument of ratification of the CAT:
“The United States understands the term, ‘cruel, inhuman or degrading treatment or punishment,’ as used in Article 16 of the Convention, to mean the cruel, unusual, and inhumane
treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to
the Constitution of the United States.” S. Treaty Doc. No. 100–20, at 15–16.
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conscience standard, which is essentially a balancing test of the value
of doing something as, against the cost of doing it.”90
One may well differ about how far this balancing test can legitimately go. But note, first, that the shocks-the-conscience analysis only
becomes necessary if one concludes that waterboarding is not necessarily
torture. Further, we might recall that the very DTA language relied upon
by Mr. Mukasey to invoke the shocks-the-conscience test was part of an
amendment offered by Senator John McCain, who has specifically called
waterboarding a form of torture and clearly illegal.91 The shocks-theconscience test is one formulation of a due process standard. It is sometimes—incorrectly, in my view—cited by supporters of harsh interrogation tactics as authorizing a utilitarian balance between the nature of
the conduct and the government’s interest in doing such things.92
Clearly, the test tends towards the subjective and the retrospective. But
can it be, when applied to waterboarding, “essentially a balancing test
of the value of doing something as, against the cost of doing it”? I do
not think so. Indeed, I believe that this balancing approach is as fundamental an error as one can make in this setting because it replaces
what should be primarily a “dignity-based” analysis with an impermissible and dangerously utilitarian one.93
90 Jan. 30, 2008 Hearing, supra note 3.
91 See infra note 11. Indeed, Senator McCain has taken a clear position on the relationship between the DTA standard and waterboarding:
[T]he President and his subordinates are . . . bound to comply with Geneva.
That is clear to me and all who have negotiated this legislation in good
faith. . . .
....
. . . We expect the CIA to conduct interrogations in a manner that is fully
consistent not only with the Detainee Treatment Act and the War Crimes Act
but with all of our obligations under Common Article 3 of the Geneva Conventions.
Press Release, Sen. John McCain, McCain Urges Final Passage of the Military Commissions
Act of 2006 (Sept. 28, 2006) (emphasis added).
92 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). In a substantive due
process analysis, a court must first determine if a statute infringes upon a fundamental right
and then whether such infringement is “narrowly tailored to serve a compelling state interest.” In County of Sacramento v. Lewis, the Court stated that “conduct deliberately intended to
injure in some way unjustifiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level.” 523 U.S. 833, 834 (1998) (emphasis added).
More recently, in Chavez v. Martinez, Justice Thomas, in a plurality opinion, wrote “the need
to investigate whether there had been police misconduct constituted a justifiable government
interest . . . .” 538 U.S. 760, 775 (2003). However, as Justice Kennedy wrote, “[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear.” Id.
at 789–90 (Kennedy, J., concurring in part and dissenting in part).
93 See Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing
Approaches to Due Process, 85 Mich. L. Rev. 510, 525–26, 531 (1986).
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The shocks-the-conscience test (in this context) derives from the
1952 case of Rochin v. California, in which the police had unsuccessfully
attempted to remove suspected capsules of morphine from a suspect’s
mouth.94 They later took him to a hospital and ordered doctors to
pump his stomach. In his majority opinion for the Court, Justice Frankfurter noted that the due process question implicated “‘canons of decency and fairness which express the notions of justice of Englishspeaking peoples even toward those charged with the most heinous
offenses.’”95 The Court derived from this a resonant holding that explicitly used the prohibition against torture as its touchstone: “the proceedings by which this conviction was obtained do more than offend
some fastidious squeamishness or private sentimentalism . . . . They are
methods too close to the rack and the screw to permit of constitutional
differentiation.”96
The Rochin Court also specifically recognized the role played by
human dignity in its analysis: noting that its decision related to “force
so brutal and so offensive to human dignity in securing evidence from a
suspect as is revealed by this record.”97 Although there have been intimations by some justices in recent cases that a review of all the circumstances is required before a court declares a particular practice to
shock-the-conscience, this is not necessary or proper as to waterboarding.98 The inquiry always requires a determination of what the United
States has traditionally considered to be out of bounds. In short, there
are—indeed, there must be—some acts that are prohibited regardless
of the surrounding circumstances. Imagine if the question were
whether cutting off the toes of a detainee shocks-the-conscience. Do we
balance? Does it depend upon the circumstances? To be sure, none of
these definitions and standards are completely clear nor generally
thought to be immutable. The question is: to which principles should
one turn to as interpretive guides? And, in the waterboarding context,
do those principles counsel vagueness and reliance on post hoc judgments or prophylactic clarity? Justice Frankfurter’s reasoning appears
to be vastly superior in this regard to that of John Yoo. Let us look to
canons of decency and fairness, to abhorrence of torture, and to human dignity.
94 342 U.S. 165, 166, 172 (1952).
95 Id. at 169 (citing Malinski v. New York, 324 U.S. 401, 417 (1945)).
96 Id. at 172.
97 Id. at 174 (emphasis added).
98 See infra note 93.
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Conclusion
Official legal equivocation about waterboarding is not merely a
technical matter. It is wrong and it is dangerous. It preserves the imprimatur of legality for torture and it shields the wrongful conduct of
the past from proper scrutiny and judgment. Perhaps even worse, it
substitutes a dangerously fluid utilitarian balancing test for the hardwon respect for human dignity at the base of our centuries-old revulsion about torture. That, in my view, is precisely what the rule of law
(and the best lawyers) ought not to do.
Even if one were inclined to quibble about the precise definition
of torture, surely there can be no doubt—and surely a responsible
government official ought to be able to say—that waterboarding is
illegal.99 As the editors of the Los Angeles Times put it: “[Mukasey’s]
statements . . . set a dangerous and hypocritical standard of convenience for torturers. Such repugnant equivocation will be mimicked
and distorted in dark corners around the world . . . .”100
I would never presume to interpret for others the deep values that
I believe have long sustained Boston College and its law school. I certainly do not think that those values mandate or support any kind of
ideological litmus test. I am completely comfortable with the general
proposition that a range of ideological viewpoints among commencement speakers is a healthy and necessary practice. But, in my view, this
matter of waterboarding is not an essentially political question. Nor is it
an especially close call as a matter of law. It does, however, cut to the
heart of the most profound legal and ethical questions of our time.
99 See Ken Gormley, Archibald Cox: Conscience of a Nation 338–58 (1997); Bilder
& Vagts, supra note 38, at 693.
100 Editorial, L.A. Times, It’s Torture; It’s Illegal, Feb. 2, 2008, at A20, available at http://
www.latimes.com/news/opinion/editorials/la-ed-mukasey2feb02,0,5132906.story.